DISTRICT OF COLUMBIA; ADRIAN M. FENTY, MAYOR OF THE
DISTRICT OF COLUMBIA, Defendants—Appellees.

On Appeal from the United States District Court for the District of Columbia

PETITION FOR REHEARING EN BANC FOR THE DISTRICT OF
COLUMBIA

LINDA SINGERActing Attorney General

TODD S. KIMSolicitor General

EDWARD E. SCHWABDeputy Solicitor General

DANIEL A. REZNECKSenior Assistant Attorney General

LUTZ ALEXANDER PRAGEROffice of the Solicitor General

Office of the Attorney General for the District of Columbia
441 Fourth Street N. W.,
Washington, D.C. 20001-2714 Tel.: (202) 724-6613

PETITION FOR REHEARING EN BANC FOR THE DISTRICT OF
COLUMBIA

ADRIAN M. FENTY
MAYOR, DISTRICT OF COLUMBIA

The District of Columbia and Mayor Adrian Fenty
respectfully petition this Court for rehearing en banc because the panel
majority's decision conflicts with a decision of the Supreme Court,
because the decision creates inter- and intra-jurisdiction decisional
conflict, and because the proceeding involves questions of exceptional
importance. In holding that the District's longstanding laws governing
firearms possession are unconstitutional, the divided panel adopted
readings of the Second Amendment and Supreme Court precedent that are
contrary to those of nearly every other federal court of appeals, as
well as the highest local court in this jurisdiction, and thereby
created a clear conflict on constitutional issues of fundamental
importance. The decision marks the first time in the Nation's history
that a federal court of appeals has struck down a law as
unconstitutional under the Second Amendment, which reads: "A well
regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed."

Rehearing by the full Court is merited for three reasons.
First, en banc review is necessary to ensure conformity with Supreme
Court precedent. As Judge Henderson explained in dissent, the panel
majority's decision conflicts with the decision in United States v.
Miller, 307 U.S. 174 (1939). That decision held that the Second
Amendment's right cannot be uncoupled from its stated civic purpose:
"With obvious purpose to assure the continuation and render
possible the effectiveness of such [militia] forces the declaration and
guarantee of the Second Amendment were made. It must be interpreted and
applied with that end in view." Id. at 178. The panel majority,
however, held that "the activities [the Second Amendment] protects
are not limited to militia service, nor is an individual's enjoyment of
the right contingent upon his or her continued or intermittent enrollment in the
militia." Op. at 46; see op. at 41-45
(discussing Miller). Judge Henderson is correct that this Court is
obliged to follow Miller's declaration that "the right of the
people to keep and bear arms relates to those Militia whose continued
vitality is required to safeguard the individual States." Diss.
op. at 3-6 (footnote omitted). En banc rehearing is thus warranted
to ensure fidelity to Miller.

Second, the panel majority's decision created an
acknowledged conflict among the Circuits and an even more unseemly
conflict within the District of Columbia itself. Nearly every other
federal court of appeals and the District of Columbia Court of Appeals
have reached a contrary conclusion on the fundamental question of what
the Second Amendment means; indeed, absent the panel majority's
decision, there would be no clearly established conflict among the
federal circuits. That fact itself establishes that en banc rehearing is
appropriate. See Fed. R. App. Proc. 35(b)(1)(B).

Third, the proceeding otherwise involves questions of
exceptional importance. These include: (1) whether the Second Amendment
protects firearms possession or use that is not associated with service
in a State militia; (2) whether the Amendment applies differently
because of the District's constitutional status; and (3) whether the
challenged laws represent reasonable regulation of whatever right the
Amendment protects. These questions are literally life-or-death given
the realities of gun violence in our society. Reasonable minds may
differ as to how effective particular firearms control measures may be,
but if the panel majority's holding remains unchanged, it will severely
limit the authority of both the District government and Congress to
legislate in ways that they believe will best protect citizens and
law-enforcement officers from gun violence and ultimately save lives.

BACKGROUND

Three fundamental principles of District law are at issue
here. First, although most rifles and shotguns may be registered for
lawful possession, handguns generally may not be registered. D.C. Code
§ 7-2502.02; see D.C. Code § 7-2502.01 (prohibiting possession of
unregistered firearms). Second, persons carrying handguns or other
weapons capable of concealment must have licenses. D.C. Code §
22-4504(a); see D.C. Code § 22-4515 (penalty provision). Third,
firearms kept at home generally must be "unloaded and disassembled
or bound by a trigger lock or similar device." D.C. Code §
7-2507.02. These provisions were enacted because thenapplicable law
failed to prevent a proliferation of guns, of crimes involving guns, and
of gun-related deaths. Appellees Br. at 3-4 (citing and discussing
legislative history).

Six residents of the District brought facial challenges
to these provisions under the Second Amendment. R. 1. Asserting a desire
for "functional" firearms including handguns for self-defense
in their homes, they sought an order permanently enjoining the District
"from enforcing D.C. Code § 7-2502.02(a)(4), barring registration
of handguns; ... from enforcing D.C. Code § 7-2507.02 in such a manner
as to bar the possession of functional firearms within the home or on
possessed land; and ... from enforcing D.C. Code §§ 22-4504 and 4515
in such a manner as to forbid the carrying of a firearm within one's
home or possessed land without a license." R. 1. The district court
dismissed the complaint after rejecting "the notion that there is
an individual right to bear arms separate and apart from service in the
Militia" and concluding that, "because none of the plaintiffs
have asserted membership in the Militia, plaintiffs have no viable claim
under the Second Amendment." R. 35, at 15; R. 36; Parker v.
District of Columbia, 311 F. Supp. 2d 103,109-10 (D.D.C. 2004).

On appeal, a divided panel reversed and remanded. Writing
for himself and Judge Griffith, Senior Judge Silberman first found that
one of the six plaintiffs, Dick Heller, had standing to challenge all
the statutory provisions at issue because he had unsuccessfully sought
to register a handgun. Op. at 5-12. This fact, the panel majority ruled,
distinguished the case from Seegars v. Gonzales, 396 F.3d 1248 (D.C.
Cir.), reh'g denied, 413 F.3d 1 (D.C. Cir. 2005), cert. denied, 126 S.
Ct. 1187 (2006), in which this Court dismissed a Second Amendment
challenge to the same provisions for lack of standing. Op. at 8.

On the merits, the panel majority concluded that
"the Second Amendment protects an individual right to keep and bear
arms" and that, "[d]espite the importance of the Second
Amendment's civic purpose, . . . the activities it protects are not
limited to militia service, nor is an individual's enjoyment of the
right contingent upon his or her continued or intermittent enrollment in
the militia." Op. at 46; see op. at
12-46. The panel majority read Miller to limit the scope of the
Amendment based only on the "relationship between the weapon in
question - a short-barreled shotgun - and the preservation of the
militia system," not "the individual's connection (or lack
thereof) to an organized functioning militia." Op. at 41-45; see op.
at 37.

The panel majority next concluded that the District's
status as a "purely federal entity" did not alter the
analysis. Op. at 46-50. Having already rejected the notion that the
Second Amendment right is limited to a "guarantee about
militias," the panel majority noted that whether the right would be
further "confined to state militias" was likely not relevant.
Op. at 47-48. In any event, the panel majority read the reference in the
Second Amendment to "a free State" to be a "refer[ence]
to republican government generally." Op. at 48-49.

Finally, the panel majority ruled that the laws at issue
are not the sort of "reasonable restrictions" on firearms use
and possession that might be permissible. Op. at 50-58. After concluding that a handgun is a weapon embraced by the
Second Amendment right (op. at 5053), the
panel majority held: "it is not open to the District to ban
them." Op. at 56. For similar reasons, the panel majority held that
the District could not use a licensing requirement to defeat handgun use
in the home: "just as the District may not flatly ban the keeping
of a handgun in the home, obviously it may not prevent it from being
moved throughout one's house." Op. at 57.

Similarly, because the panel majority read D.C. Code §
7-2507.02 to "amount[] to a complete prohibition on the lawful use
of handguns for self-defense," that provision too was held
unconstitutional. Op. at 57-58. Finding "no material questions of
fact in dispute," the panel majority remanded the case for the
district court "to grant summary judgment to Heller consistent with
the prayer for relief contained in appellants' complaint." Op. 58.

Judge Henderson dissented. She noted that, under this
Court's decision in See gars, even Heller would lack standing as to the
provision directing how firearms are to be stored. Diss. op. at 2 n.2. On the merits, she found
Miller to be
"unmistakable" and to "doom[] Heller's challenge." Diss.
op. at 2. In particular, the Supreme Court "emphatically
declared that the entire Second Amendment-both its `declaration' and its
'guarantee' - 'must be interpreted and applied' together" and thus,
"as Miller declares, the right of the people to keep and bear arms
relates to those Militia whose continued vitality is required to
safeguard the individual States." Diss.
op. at 3-6 (quoting Miller, 307 U.S. at 178) (citations and
footnotes omitted). Judge Henderson concluded that, "under Miller,
the District is inescapably excluded from the Second Amendment because
it is not a State." Diss. op. at 6;
see diss. op. at 8-17 (concluding that
the District need not be treated as a State for Second Amendment
purposes). "[U]ntil and unless the Supreme Court revisits Miller,
its reading of the Second
Amendment is the one we are obliged to follow." Diss.
op. at 6.

DISCUSSION

I. The Panel Majority's Decision Conflicts with the
Supreme Court's Decision in Miller.

The Supreme Court in Miller analyzed the Second Amendment
by considering the relationship between its two parts: the declaration
("A well regulated Militia, being necessary to the security of a
free State . . . .") and the guarantee (" . . . the right of
the people to keep and bear Arms, shall not be infringed."). 307
U.S. at 178. After setting forth the Militia Clauses of the
Constitution, U.S. Const. Art. I, § 8, cl. 15-16, the Miller Court
stated: "With obvious purpose to assure the continuation and render
possible the effectiveness of such [militia] forces the declaration and
guarantee of the Second Amendment were made. It must be interpreted and
applied with that end in view." 307 U.S. at 178 (emphasis added).
As Judge Henderson explained, the Court thus held that "the right
of the people to keep and bear arms relates to those Militia whose
continued vitality is required to safeguard the individual States."
Diss. op. at 3-6 (footnote omitted).

The panel majority, however, held that "the
activities [the Second Amendment] protects are not limited to militia
service, nor is an individual's enjoyment of the right contingent upon
his or her continued or intermittent enrollment in the militia."
Op. at 46. It so held after relating that the arguments the United
States had made to the Miller Court included both an argument about the
meaning of the entire Second Amendment and an argument specifically
about what "Arms" it covers. Op. at 42. Concluding that
"the Court's opinion. .. is most notable for what it omits,"
the panel majority concluded that the holding was limited to the
narrower, "weapons-based argument." Op. at 42-44.

The District respectfully submits that nothing in the
Supreme Court's opinion and reasoning contains the gloss applied by the
panel majority. Over the nearly seven decades since Miller was issued, most other federal courts of appeals
have read it as the District and Judge Henderson do.1
Diss.
op. at 4 n.4; see op. at 16 n.4; see also
Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citing and quoting
Miller in holding that a law prohibiting gun possession by felons
trenched on no liberty protected by the Second Amendment). Only a
divided panel of the Fifth Circuit in dicta has read Miller as the panel
majority does.2 At a minimum, rehearing en banc is warranted before the
Court adopts an interpretation of Miller that is subject to such great
dispute.

The acknowledged decisional conflicts created by the
panel majority's holding themselves justify en banc rehearing. See Fed.
R. App. Proc. 35(b)(1)(B). Nearly every other federal court of appeals
has interpreted the Second Amendment contrary to the panel majority. Op.
at 16 & n.4. Indeed, there would be no clear circuit conflict absent
the panel majority's ruling. A divided panel of the Fifth Circuit in
Emerson adopted the view that firearm possession and use with no
connection to militia service may enjoy Second Amendment protection;
however, the federal firearms law at issue was upheld and the concurring
judge deemed the majority's view to be non-binding dicta.3 270 F.3d at
264-65; id. at 272-74 (Parker, J., specially concurring). Neither the Fifth Circuit nor any other
circuit until now has ever struck down a gun control law under the
Second Amendment. In that respect, the panel majority's decision stands
alone.

The panel majority also stands in acknowledged conflict
with the highest local court in this jurisdiction, the District of
Columbia Court of Appeals. Op. at 17 n.6; see Sandidge v. United States,
520 A.2d 1057, 1058 (D.C. 1987). That court's view of the
constitutionality of District law deserves this Court's full
consideration to resolve this unseemly conflict.

III. The Proceeding Involves Questions of Exceptional
Importance.

Rehearing en banc is also justified given the exceptional
importance of the questions presented in this case: (1) whether the
Second Amendment protects firearms possession or use that is not
associated with service in a State militia; (2) whether the Amendment
applies differently because of the District's constitutional status; and
(3) whether the challenged laws represent reasonable regulation of
whatever right the Amendment protects.

1. The District submits that the Second Amendment
protects private possession of weapons only in connection with service
in a well-regulated citizens militia. Even assuming that Miller did not
directly hold as much, there are significant textual and historical
arguments (as well as voluminous scholarship) supporting this reading.
See, e.g., Silveira, 312 F.3d at 106687; Appellees Br. at 23-34. The
full Court should consider these arguments.

The exceptional importance of how the Second Amendment
should be read is plain. Based on its reading, the panel majority struck
down District laws enacted over three decades ago for the protection of
the District's citizens and law-enforcement officers. If the ruling stands, the federal courts in this jurisdiction may
expect to be singularly attractive to suits against the United States
Attorney General challenging nationally applicable firearm laws Congress
has enacted or may yet enact. Any ruling striking down a law as
unconstitutional is important, but this one is particularly so given the
subject matter. How best to control gun violence is a complex topic,
with many competing, passionately held views. The politically
accountable legislatures -- the Council of the District of Columbia as to
District-specific legislation and Congress as to national legislation --
are the best fora for considering such competing views.
Whether or not they are correct, constitutional rulings like that of the
panel majority severely limit what measures the political branches can
take to address the concerns facing their citizens. Thus, the
constitutional question posed here has real consequences in terms of
lives saved or lives lost.

2. The panel majority further held that the District's
constitutional status made no difference to its analysis. That holding
is also exceptionally important and deserves full consideration by this
Court, particularly because it is unique to this Circuit. Judge
Henderson . reasoned that "the right of the people to keep and bear
arms relates to those Militia whose continued vitality is required to
safeguard the individual States" and that the District need not be
treated as a State for purposes of the Second Amendment. Diss. op. at 3-6, 8-17 (footnote omitted). She disagreed with the
panel majority's conclusion that the textual reference to "a free
State" was a "refer[ence] to republican government
generally." Op. at 48-49. Instead, she concluded that the word
"State" should have the same meaning in the Second Amendment
that it does elsewhere in the Constitution-such as in the Militia
Clauses themselves, where the word "States" is used in its
standard sense. Diss. op. at 8-9;
U.S. Const. Art. 1, § 8, cl. 16.

Judge Henderson's conclusion if adopted would merely
place District residents on a par with State residents, given that the
Second Amendment does not restrict State regulation of weapons but
instead allows each State to adopt measures allowing or restricting
firearms use as the State sees fit. Op. at 39 n.13; Presser v. Illinois,
116 U.S. 252, 265 (1886). Whether the District has the same ability is a
matter deserving en banc rehearing by the federal court of appeals with
geographic jurisdiction limited to the District.4

3. Finally, the panel majority held that the challenged
laws do not represent acceptable regulation of activity protected by the
Second Amendment, but rather are unconstitutional to the extent they
prohibit handgun possession in the home, require licenses for any
movement of handguns in the home, and prohibit use of lawfully possessed
firearms for self-defense. The panel majority agreed that Second
Amendment rights are subject to "reasonable restrictions";
however, it did not consider the legislature's reasons for enacting the
laws in question. Op. at 53-54; cf. op. at 55
n. 17 (declining to consider whether laws are "irrational[]").
At a minimum the legislature's view that handguns contributed
disproportionately to crime should merit consideration in the decision
whether the legislature's choice to ban most handguns while allowing
rifles and shotguns is constitutionally permissible.

The panel majority decided that handguns, as a class of
weapons subject to Second Amendment protection, may not be barred. Op.
at 56. The District submits, however, that outlawing a particular type
of weapon because its harms outweigh its benefits does not frustrate the
core purposes of the Second Amendment whether to promote the common
defense, the militia, or self-defense-so long as other arms remain
available and reasonably adequate to serve those purposes. Appellees Br. at 14-16. Even if the Court
does not take as conclusive the Council's view on handguns'
disproportionate contribution to social ills, the Court should take that
view into account or at least allow factual exploration of whether
handguns may reasonably be banned given that District law does allow
rifles and shotguns. The panel majority, however, found no disputed
facts and ordered the entry of summary judgment. Op. at 58. Its
conclusion that the District is barred as a matter of law from banning
what it deems to be a particularly harmful type of weapon deserves the
full Court's consideration.

Similarly deserving of en banc rehearing are the panel
majority's conclusions on the District's licensing and safe-storage
laws. Op. at 57-58. After holding that the District may not deny
registration to handguns as a class, the panel majority appeared to
reject the notion that the District may require a license for any person
to move handguns within the home. Op. at 57. The District submits,
however, that there are circumstances when the licensing law may be
constitutionally applied-for example, when the potential licensee is a
convicted felon. See op. at 54 (citing
Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897)). Under the usual
principles relating to a facial constitutional challenge, if a law is
capable of being applied constitutionally, then the challenge fails.
United States v. Salerno, 481 U.S. 739, 745 (1987). On a related note,
the fact that the District of Columbia Court of Appeals has never
construed the safe-storage provision and could yet construe it to
comport with the panel majority's constitutional analysis raises doubt
as to whether the panel majority should have invalidated the District's
law without awaiting an authoritative construction from the District's
courts. See New York v. Ferber, 458 U.S. 747, 768 (1982) (limiting
constitutional attacks to as-applied settings "fulfills a valuable
institutional purpose: it allows state courts the opportunity to
construe a law to avoid constitutional infirmities").

IV. The Court Should Order New Briefing.

If the Court grants this petition for rehearing en banc,
the District respectfully suggests that the Court should order new
briefing by the parties. See Circuit Rule 35(e). The Court should also
allow new briefing both by the amici who filed briefs before the panel
and by other amici who may be interested in and affected by the Court's
decision and who could contribute meaningfully to the Court's
understanding of the issues raised.5

Because the posture of the case would change
significantly before the en banc Court, new briefing would be
particularly appropriate. The parties' briefs before the panel addressed
standing in great detail. Appellants Br. at 17-22; Appellees Br. at
7-11; Reply Br. at 2-18. Indeed, this Court had previously ordered the
parties to address both standing and the merits. Order of Nov. 2, 2005.
The parties' standing analyses depended on interpretation of precedent
-- in particular Seegars -- that was binding on the panel but would not be in
an en banc proceeding, and thus the briefing would likely change
substantially.

Moreover, the importance of this case counsels in favor
of allowing new briefing. The parties should have full opportunity to
address the points made by the panel majority and the dissent. Two
particular topics that could benefit from further exploration are what
level of scrutiny applies in determining whether a governmental interest
is sufficiently weighty to justify regulation of Second Amendment rights
and whether, as Judge Henderson concluded in dissent, the District's constitutional status is itself reason to
reject the plaintiffs' challenges to District law. Ordering new briefing
will prejudice no one but instead will ensure that these exceptionally
important issues receive the full treatment they deserve.

CONCLUSION

The Court should grant this petition for rehearing en
banc. Respectfully submitted,

LINDA SINGERActing Attorney General

TODD S. KIMSolicitor General

EDWARD E. SCHWABDeputy Solicitor General

DANIEL A. REZNECKSenior Assistant Attorney General

LUTZ ALEXANDER PRAGEROffice of the Solicitor General

Office of the Attorney General for the District of Columbia
441 Fourth Street N.W.
Washington, D.C. 20001-2714
Tel.: (202) 724-6613

3 Later cases in that court have not
clarified whether the Emerson panel's view is binding. Compare United
States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004) (stating that
Emerson is binding but upholding the law in question), with United
States v. Darrington, 351 F.3d 632, 633 (5th Cir. 2003) ("Emerson
is a carefully worded decision, and we do not address the contention
that its recognition of an individual right to keep and bear arms is
dicta.").

4 In the District, Congress and the
Council generally possess "all the police and regulatory powers
which a state legislature or municipal government would have."
Palmore v. United States, 411 U.S. 389, 397 (1973); see D.C Code §
1-203.02; District of Columbia v. John R. Thompson Co., 346 U.S. 100,
110 (1953).

5 Attesting to this case's importance,
16 States (as well as the cities of Boston, Chicago, New York, and San
Francisco) and numerous national groups participated as amici curiae
before the panel on both sides. Many additional amici would likely be
interested in assisting the Court should the petition be granted. For
instance, the International Association of Chiefs of Police has
expressed concern that the panel majority's ruling will harm
law-enforcement efforts, and the American Academy of Pediatrics has
expressed concern that children in particular will suffer from avoidable
gun violence. {CITE TO WEB SITES WITH PRESS RELEASES: www.iacp.org
l www.aap.org.}